IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

James Jerome Royster, :

 Plaintiff, :

 v. : Case No. 11-cv-1163

Gary Mohr, et al., : JUDGE PETER C. ECONOMUS

 Magistrate Judge Kemp

 Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, James Jerome Royster, a state prisoner confined

at the Chillicothe Correctional Institution (“CCI”), filed this

action against director of the Ohio Department of Rehabilitation

and Correction (“ODRC”) Gary Mohr, warden Norm Robinson, CCI

health care administrator Alice Ault, and physician Dr. Williams,

asserting an Eighth Amendment claim under 42 U.S.C. § 1983, a

claim under the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. §12102(2), and a medical malpractice and/or negligence

claim based on state law. In his complaint, Mr. Royster claims

that the defendants exhibited deliberate indifference to his

serious medical needs by failing to provide him with the

necessary medical treatment and equipment to manage the severity

and frequency of pain caused by degenerative scoliosis and spinal

stenosis. Among other things, Mr. Royster alleges that Dr.

Williams confiscated and failed to replace his transcutaneous

electrical unit (“TENS unit”) and improperly prescribed him the

medication Moloxicam, which Mr. Royster alleges can be fatal if

administered to a person with his medical history.

On January 2, 2013, defendants Gary Mohr, warden Norm

Robinson, and Alice Ault (collectively “defendants”) moved for

judgment on the pleadings. (Doc. #22). Included in the motion

for judgment on the pleadings is a request that this Court

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dismiss Dr. Williams as a party to this action due to alleged

insufficient service of process. Mr. Royster filed an opposition

to defendants’ motion for judgment on the pleadings on January

13, 2013. (Doc. #23). Defendants filed a reply brief in support

of their motion on January 23, 2013 (Doc. #24), and Mr. Royster

filed a sur-reply opposing the motion on February 5, 2013 (Doc.

#25). Consequently, the motion for judgment on the pleadings is

ripe for consideration. 

For the reasons that follow, it will be recommended that the

motion for judgment on the pleadings be granted as to defendants

Gary Mohr, Norm Robinson, and Alice Ault. However, to the extent

that defendants seek to have Dr. Williams dismissed from this

case due to Mr. Royster’s alleged failure to serve him properly,

it will be recommended that Mr. Royster be granted a twenty-eight

day extension of time to effect service on Dr. Williams. 

Consequently, it will be recommended that the request to dismiss

Dr. Williams be denied. 

I. Legal Standard

A motion for judgment on the pleadings attacks the

sufficiency of the pleadings and is evaluated under the same

standard as a motion to dismiss. Amersbach v. City of Cleveland,

598 F.2d 1033, 1038 (6th Cir. 1979). In ruling upon such a

motion, the Court must accept as true all well-pleaded material

allegations of the pleadings of the opposing party, and the

motion may be granted only if the moving party is nevertheless

clearly entitled to judgment. Southern Ohio Bank v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.

1973). 

The new pleading standards articulated in Ashcroft v. Iqbal,

556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007) apply with equal force to motions for judgment on the

pleadings. See Schwab v. Smalls, No. 10-221-cv, 2011 WL 3156530,

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at *1 (2d Cir. July 27, 2011). Those cases make clear that in

order to survive such a motion, a complaint must contain “enough

facts to state a claim to relief that is plausible on its face." 

Twombly, 550 U.S. at 570. Further, the Court must disregard

statements of legal conclusions and look only to the well-pleaded

facts of the complaint in order to determine its legal

sufficiency. Pro se complaints are to be construed liberally in

favor of the pro se party. See Haines v. Kerner, 404 U.S. 519,

520 (1972). It is with these standards in mind that the motion

for judgment on the pleadings must be decided.

II. Service as to Dr. Williams

In the motion for judgment on the pleadings, defendants

assert that Dr. Williams has yet to be served properly. (Doc.

#22 at n.1). Consequently, defendants request that Dr. Williams

be dismissed from this action. Id. Without proper service on

Dr. Williams, this Court may not exercise personal jurisdiction

over him. See Elkins v. Summit County, No. 5:06-CV-3004, 2008 WL

622038, at *2 (N.D. Ohio Mar. 5, 2008) (citing Murphy Bros., Inc.

v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)). 

Fed. R. Civ. P. 4(e) governs service on individuals within a

judicial district of the United States. Under Fed. R. Civ. P.

4(e)(1), service may be effected pursuant to the law of the state

where the district court is located. Ohio R. Civ. P. 4.1(A)

allows service to be made by certified mail evidenced by return

receipt. Further, in cases involving a plaintiff proceeding in

forma pauperis, the United States Marshal, by order of the Court,

shall serve the summons and the complaint. Fed. R. Civ. P.

4(c)(3). 

Fed. R. Civ. P. 4(m) sets forth the general requirement that

a complaint and summons be served on each named defendant within

120 days of the date the complaint is filed. By its terms, the

rule requires that the Court take either one of two actions if

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service is not made within that time frame - either “dismiss the

action without prejudice against that defendant” or “order that

service be made within a specified time.” The rule also contains

a mandate concerning extensions of time to make service; it

provides that “if the plaintiff shows good cause for the failure,

the court must extend the time for service for an appropriate

period.” The Advisory Committee Notes to the 1993 amendments to

Rule 4 interpret this language to mean that when a plaintiff has

shown good cause to extend the time for making service, the Court

must grant an extension; on the other hand, when the plaintiff

has not shown good cause, the Court still may grant an extension

if that would represent a sound exercise of the Court’s

discretion. This Court has adopted that interpretation of Rule

4(m). See Vergis v. Grand Victoria Casino and Resort,199 F.R.D.

216, 217-18 (S.D. Ohio 2000). Other district courts within the

Sixth Circuit have reached similar conclusions. See, e.g., In re

Aredia and Zometa Prod. Liab. Litig., No. 3:06-MD-1760, 2007 WL

4376098, *2 (M.D. Tenn. Dec. 13, 2007)(“this Court may clearly

grant more time without a showing of good cause ...”); see also

Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 325-26 (E.D.

Mich. 2001); Burnett v. Martin, No. 6:06-482-DCR, 2007 WL

2156541, at *1-2 (W.D. Ky. July 24, 2007). 

In this case, defendants acknowledge that Dr. Williams was a

physician who worked at CCI under a personal services contract,

and that Mr. Royster attempted to serve Dr. Williams at CCI by

certified mail service. (Doc. #10 at n.1). Defendants assert,

however, that an individual at CCI “mistakenly accepted”

certified mail service for Dr. Williams because he “has not

worked at [CCI] for quite some time.” Id. According to

defendants’ counsel, the facts pertaining to the attempted

service on Dr. Williams are as follows:

Plaintiff’s Complaint named a “Dr. Williams” and

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Plaintiff apparently prepared a summons for service by

certified mail through the United States Marshal’s Office

on January 5, 2012 for “Dr. Williams” to be served at

[CCI]. Later, on January 12, 2012, the Court had received

the signed certified mail receipt indicating that service

has been accepted for Dr. Williams at [CCI].

However, it was later determined that the certified

mail had been accepted in error as “Dr. Williams” did not

work at CCI and no forwarding address information for

“Dr. Williams” was known by CCI personnel. [Defendants’

counsel] was advised by CCI personnel that the certified

mail was to be sent back to the United States Marshal’s

Office indicating that it been accepted in error.

Prior to filing the Notice of Appearance and

Defendants’ Answer, [defendants’ counsel] made diligent

attempts to locate “Dr. Williams” through contact with

various prison officials at institutions where it was

thought that “Dr. Williams” may have at one time been

employed, including Belmont Correctional Institution, as

well as the ODRC Central Office. No definitive

information could be obtained as to where “Dr. Williams”

could be contacted.

(Doc. #19 at 3-4)(citations omitted). Defendants’ counsel raised

the issue of the allegedly insufficient service of process on Dr.

Williams in the notice of appearance (Doc. #10 at n.1)

(indicating that defendants’ counsel was not authorized to enter

an appearance on behalf of Dr. Williams or to waive service for

him), in a motion for an extension of time to file dispositive

motion (Doc. #19)(quoted above), and in defendants’ motion for

judgment on the pleadings (Doc. #22 at n.1)(stating that “no

service has yet to be perfected on ‘Dr. Williams’” and requesting

that “‘Dr. Williams’ be dismissed under Fed. R. Civ. P. 4(m), or

alternatively, under Fed. R. Civ. P. 41(b) for failure to

prosecute”). Mr. Royster has not responded to the service issue

and, according to defendants, he has not “filed any requests for

discovery in order that he might learn the whereabouts of ‘Dr.

Williams.’” (Doc. #22 at n.1). Further, the docket does not

reflect that CCI personnel returned the certified mail to the

United States Marshal’s Office indicating that it had been

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accepted in error.

 The question before this Court is whether service by

certified mail at CCI, where Dr. Williams formerly served as a

physician under a personal services contract, with a receipt

signed by a person other than him, constitutes adequate service

under Ohio law. It is well established that Ohio law allows for

service of process by certified mail even if someone other than

the defendant signs the certified mail receipt. See Elkins, 2008

WL 622038 at *3; Castellano v. Kosydar, 326 N.E.2d 686, 689 (Ohio

1975)(providing that service by certified mail is no longer

required to be delivered to and signed by addressee only). 

Whether service was proper at a former place of employment,

however, requires further discussion. 

The sufficiency of certified mail service at a place of

employment or business address is a “recurrent and troublesome

problem. . .” Bell, 624 N.E.2d at 198. Indeed, the Ohio Supreme

Court has acknowledged that there are inherently greater risks in

such service due to “the oftentimes numerous intermediate, and

frequently uninterested, parties participating in the chain of

delivery.” Akron-Canton Regional Airport Auth. v. Swinehart, 406

N.E.2d 811, 813-14 (Ohio 1980). In evaluating the sufficiency of

service of process, “a principal consideration is that the party

being served must have such a habitual, continuous or highly

continual and repeated physical presence at the business address

that the party ordering the service of process would have

reasonable grounds to calculate that the service would promptly

reach the party being served.” Id. (quoting Bell v. Midwestern

Educational Serv., Inc., 624 N.E.2d 196, 202 (Ohio Ct. App.

1993)) (internal quotations omitted). This is a global

consideration of whether the service comports with due process,

and whether the notice is reasonably calculated to apprise the

interested party of the pendency of the action. See id. (citing

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Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950)).

 Ohio courts examining whether an individual can be served

properly at a former place of employment have found that the

service, even if accepted by another individual, does not comport

with due process because the defendant is not physically present

at the location. See, e.g., Call Detroit Diesel Allison, Inc. v.

C&D Oil Co., Inc., No. CA 85A05-038, 1985 WL 7304, at *3 (Ohio

Ct. App. Oct. 25, 1985) (finding that service was not reasonably

calculated to reach defendant because he was not employed at the

place of business at the time of service, despite the fact that

service was received by defendant’s mother); cf. Swinehart, 406

N.E.2d at 813-14 (holding that service on a business address only

sporadically visited by a business advisor was not reasonably

calculated to reach him and did not comport with due process);

Bell, 624 N.E.2d at 199-203 (finding that service of process on

defendant shareholders was invalid because they did not have a

habitual, continuous, or highly continual and repeated physical

presence at the business location and it was not reasonably

calculated to apprise them of the action, where the certified

mail deliveries were signed for by someone other than

defendants). Federal courts examining this issue have reached

the same conclusion. See, e.g., Higgason v. Morton, No. 3:98-CV105, 2012 WL 3109371, at *1-4 (N.D. Ind. July 26, 2012) (holding

service invalid where plaintiff attempted service by certified

mail on corrections officers who, unbeknownst to plaintiff, no

longer worked at the prison and mailroom employee accepted

service despite the fact that defendants were no longer employed

there); Randolph v. East Palo Alto, No. C 06-07476 SI, 2007 WL

1232057, at *5 (N.D. Cal. Apr. 26, 2007) (finding service

improper where plaintiff served defendant at police station, his

former place of employment, and service was accepted by

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individual other than defendant); but see Izen v. Catalina, 256

F.3d 324, 327 (5th Cir. 2001) (determining that service of

process was valid at defendant’s former place of employment where

an individual other than defendant signed the return receipt and

defendant received prompt, actual notice of the lawsuit at his

current place of work).

The decision to extend time in which to effect service is

within the trial court’s sound discretion. See Friedman v.

Estate of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991). Here, it

appears to be undisputed that Dr. Williams no longer works at CCI

and he has not worked there for some time. For that reason, Mr.

Royster’s attempted certified mail service upon Dr. Williams at

CCI was not reasonably calculated to inform him of this action. 

See id. This is true despite the fact that a CCI representative

signed for the certified mail and the docket does not reflect

that CCI personnel returned the certified mail to the United

States Marshal’s Office indicating that it been accepted in

error. See C&D Oil, 1985 WL 7304 at *2.

Mr. Royster has not provided any explanation for his failure

to serve Dr. Williams properly, and it does not appear that Mr.

Royster has made any effort to discover information necessary for

service. Mr. Royster’s pro se status does not relieve him of his

obligation to effect service properly. See Becker v. Warden Ross

Corr. Inst., No. 2:05-CV-908, 2006 WL 2869567, at *3 (S.D. Ohio

Oct. 5, 2006)(citation omitted). Although the Court does not

condone the delay and Mr. Royster’s less than diligent efforts to

serve Dr. Williams, it is appropriate to give Mr. Royster one

further opportunity to effect such service. The Court makes this

finding in its discretion and guided by the “strong preference

claims be adjudicated on their merits.” Coleman v. Shoney’s,

Inc., 79 Fed. Appx. 155, 157 (6th Cir. 2003). Consequently, it

will be recommended that defendants’ request to dismiss Dr.

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Williams be denied and that Mr. Royster be granted a twenty-eight

day extension to effect service on Dr. Williams. 

III. Defendants’ Arguments and Plaintiff’s Responses

In their motion for judgment on the pleadings, defendants

raise five arguments. First, defendants assert that they have

been sued in their official capacities and that such claims are

barred by the Eleventh Amendment to the United States

Constitution. Defendants also argue that Mr. Royster is barred

from seeking monetary damages from them in their official

capacities, except for in the Ohio Court of Claims. (Doc. #22 at

9). Second, defendants argue that Mr. Royster’s complaint fails

to plead facts supporting a claim of deliberate indifference to

his serious medical needs, and his allegations of medical

malpractice are not cognizable in a lawsuit brought under §1983. 

Third, defendants argue that Mr. Royster’s claims against them in

their individual capacities fail because he does not allege any

facts suggesting their personal involvement. Defendants also

claim that they, as government officials performing discretionary

functions, are afforded a qualified immunity defense under §1983,

because their conduct did not violate a clearly established

statutory or constitutional right. Fourth, defendants argue that

this Court should decline to exercise supplemental jurisdiction

over Mr. Royster’s state law claims for medical malpractice

and/or negligence. In addition, defendants assert that this

Court is without jurisdiction to hear Mr. Royster’s claim of

medical malpractice and/or negligence against them in their

individual capacities, which they allege should have been brought

in the Ohio Court of Claims. Fifth, defendants contend that Mr.

Royster’s ADA claim should be dismissed because they are not

proper defendants under the statute. Further, defendants argue

that Mr. Royster has not pleaded sufficient facts to qualify him

as a disabled person under the ADA.

In response, Mr. Royster appears to argue that defendants

violated F. R. Civ. P. 12(b) by asserting affirmative defenses in

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their answer, but addressing them more thoroughly in the motion

for judgment on the pleadings. Mr. Royster also argues that

defendants rely on waived defenses in the motion. In reply,

defendants assert that their motion does not rely upon any

defense that was waived and that the motion is properly before

the Court. Finally, in a sur-reply, Mr. Royster argues that

defendants’ motion for judgment on the pleadings should be

treated as a motion for summary judgment and that defendants have

waived the arguments they set forth in their motion.

IV. Analysis

In examining the pending motion for judgment on the

pleadings, the Court first will address Mr. Royster’s §1983

claims against defendants in their official capacities and next

will turn to the §1983 claims against defendants in their

individual capacities. The Court then will examine Mr. Royster’s

ADA claim. Finally, the Court will discuss Mr. Royster’s medical

malpractice and/or negligence claim arising under state law. 

A. §1983 Claims Against Defendants

in Their Official Capacities

 The Eleventh Amendment to the United States Constitution

bars suits against either a state or agencies of a state by

citizens of that state. Edelman v. Jordan, 415 U.S. 651, 651

(1974). Under certain circumstances, a suit against an

individual state official may nonetheless be deemed to be a suit

against the state and therefore barred by the Eleventh Amendment. 

The primary test for determining whether the state is the real

party in interest in a suit is whether the source of any funds

from which a damage award would be paid would be the state

treasury. Id. at 663. Additionally, if an individual is alleged

to have only vicarious liability as a result of his official

position, any damage award made (if one were permissible) would

necessarily be against the office rather than the officeholder

and therefore be an award against the state. See Hall v. Medical

College of Ohio, 742 F.2d 299, 305 (6th Cir. 1984). When a suit

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is barred by the Eleventh Amendment, the Court lacks jurisdiction

over it and it must be dismissed without prejudice. Cf. Gwinn

Comm. Sch. v. Michigan, 741 F.2d 840, 846-47 (6th Cir. 1984).

In his complaint, Mr. Royster makes clear that he filed the

lawsuit against defendants “in their individual and official

capacities.” (Doc. #3 at 6). Consequently, Mr. Royster’s claims

for monetary relief against defendants in their official

capacities must be dismissed under the Eleventh Amendment. 

Defendants do not, however, have Eleventh Amendment immunity with

respect to Mr. Royster’s claims against them in their individual

capacities. The Court now turns to those claims.

B. §1983 Claims Against Defendants

in Their Individual Capacities

Defendants apparently concede that they may be liable in

their individual capacities for damages under §1983, but only to

the extent that they participated directly in the claimed

violations. Defendants argue that Mr. Royster has not alleged

that they had any direct involvement in the alleged

constitutional violations at CCI. For this reason, defendants

contend that they are entitled to judgment on the pleadings as to

Mr. Royster’s claims against them in their individual capacities

under §1983. 

Allegations of direct involvement in constitutional

deprivations, rather than attempts to impose liability by virtue

of the doctrine of respondeat superior, are necessary in order to

hold an individual defendant liable under §1983. See Monell v.

Department of Soc. Servs., 436 U.S. 658, 658 (1978). Although

there are other legal claims that can be asserted properly

against a supervisor simply because someone under his or her

supervision may have committed a legal wrong, liability for

constitutional deprivations under §1983 cannot rest on such a

claim. Consequently, unless the plaintiff's complaint

affirmatively pleads the personal involvement of a defendant in

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the allegedly unconstitutional action about which the plaintiff

is complaining, the complaint fails to state a claim against that

defendant and dismissal is warranted. See Bellamy v. Bradley,

729 F.2d 416, 421 (6th Cir. 1984). This rule holds true even if

the supervisor has actual knowledge of the constitutional

violation as long as the supervisor did not actually participate

in or encourage the wrongful behavior. See Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be

held liable under §1983 for failing to respond to grievances

which alert them of unconstitutional actions); see also Stewart

v. Taft, 235 F. Supp.2d 763, 767 (N.D. Ohio 2002) (“supervisory

liability under §1983 cannot attach where the allegation of

liability is based upon a mere failure to act”).

In reviewing defendants’ motion for judgment on the

pleadings, the Court has accepted as true all well-pleaded

factual allegations in the complaint and given appropriate

consideration to Mr. Royster’s pro se status. Having done so, it

is clear that defendants are nevertheless entitled to judgment on

Mr. Royster’s §1983 claims against them in their individual

capacities. 

The alleged constitutional violations in this case relate to

the confiscation of Mr. Royster’s TENS unit, the failure to

replace the TENS unit, and the prescription of the medication

Moloxicam. Mr. Royster identifies Dr. Williams as being

connected to these actions, stating that the TENS unit “was

confiscated by Dr. Williams” and that “Dr. Williams prescribed a

Pain Management Drug ‘Moloxicam’. . .” (Doc. #3 at ¶¶35-36). As

noted above, Dr. Williams has not been served successfully, and

he is not properly before the Court. Mr. Royster does not allege

that defendants participated in, or encouraged, the decisions to

deny him the TENS unit or to prescribe him Moloxicam. Hence, his

theory of liability appears to be based on the idea that

defendants had supervisory authority over the individual who may

have been involved in the allegedly unconstitutional conduct. 

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Because Mr. Royster must allege personal involvement by each

defendant in the alleged deprivation of his rights and may not

base liability on respondeat superior or vicarious liability,

such allegations are insufficient to maintain the §1983 claims

against defendants. For these reasons, the Court will recommend

that the motion for judgment on the pleadings be granted as to

Mr. Royster’s §1983 claims. 

C. ADA Claim

Under Title II of the ADA, “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied benefits of the services, programs,

or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. §12132. As used

in Title II of the ADA, “public entity” is defined as: “(A) any

State or local government; (B) any department, agency, special

purpose district, or other instrumentality of a State or States

or local government; and (C) the National Railroad Passenger

Corporation, and any other commuter authority (as defined in

section 24102(4) of Title 49).” 42 U.S.C. §12131. 

Although the ADA applies to both federal and state prisons,

see Mingus v. Butler, 591 F.3d 474, 482 (6th Cir. 2010),

individual prison officials cannot be held individually liable

under the ADA. See Cox v. Jackson, 579 F. Supp. 2d 831, 850

(E.D. Mich. 2008) (“‘Public entity’ under the Act does not

include an individual prison official, and thus plaintiff fails

to state a claim against the individual defendants under the

ADA”). As noted above, Mr. Royster has sued defendants in their

individual and official capacities; he has not sued ODRC, CCI, or

any other “public entity” as defined by the statute. Because Mr.

Royster may not bring an ADA claim against defendants in their

individual capacities, it will be recommended that the motion for

judgment on the pleadings be granted as to those claims.

Although a public official acting in his or her official

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capacity may be a proper defendant under an ADA Title II claim,

see Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir.

2002), Mr. Royster bears the burden of demonstrating that he is a

qualified individual with a disability within the meaning of the

statute and that he is being denied the benefits of a service,

program, or activity by reason of his disability. See Tucker v.

Tennessee, 539 F.3d 526, 533 (6th Cir. 2008). An individual is

disabled under the ADA if he or she (1) has a physical impairment

that substantially limits one or more of the major life

activities, (2) has a record of such impairment, or (3) is

regarded as having such an impairment. See Talley v. Family

Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). 

Defendants claim that despite Mr. Royster’s “unsupported and

self-serving statement that he is a disabled person, no evidence

has been put forth in the record that his physical ailments has

[sic] qualified as a disabled person.” (Doc. #22 at 23)(citation

omitted). There is no question that Mr. Royster suffers from

scoliosis, which is supported by medical records from 1967 and

1970. (Doc. #3, Appendix 1). However, “[m]erely having an

impairment does not make one disabled for purposes of the ADA.” 

Gerton v. Verizon South Inc., 145 Fed. Appx. 159, 164-65 (6th

Cir. 2005). Here, Mr. Royster has not alleged that his physical

impairment substantially limits one or more of his major life

functions, such as caring for himself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, and learning. See

id. Further, aside from old medical records which indicate that

he has scoliosis, Mr. Royster has not provided a record of such

an impairment. Finally, it cannot be said that Mr. Royster is

regarded as having an impairment because, as he observed twice in

his complaint, the “Department of Corrections has never

recognized [him] as a Disabled Person.” (Doc. #3 at ¶¶ 15, 38). 

Thus, Mr. Royster has failed to plead facts supporting a

disability, which is a threshold requirement to prove a violation

of the ADA. See Gerton, 145 Fed. Appx. at 164-65.

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Further, even assuming that Mr. Royster could demonstrate

that he was disabled under the ADA, he fails to allege that he

was denied the benefit of a service, program, or activity by

reason of his disability. The alleged denial must be “solely” by

reason of the disability. See Sandison v. Michigan High Sch.

Athletic Ass’n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995). Here,

Mr. Royster fails to plead facts suggesting that his TENS unit

was confiscated and not replaced due to his alleged disability. 

Rather, according to Mr. Royster’s complaint, the TENS unit was

not replaced due to a shortage of funds. (Doc. #3 at ¶44). In

addition, Mr. Royster has not set forth any law or facts

demonstrating that defendants have a duty to provide a TENS unit

for persons who, like Mr. Royster, are suffering from pain

associated with scoliosis. Cf. Crumbaker v. McClean County, Ky.,

37 Fed. Appx. 784, 786 (6th Cir. 2002) (finding a lack of

evidence as to whether defendants had a duty to provide medical

treatment or assistance to individuals who are mentally ill or

addicted to illegal drugs). Indeed, medical treatment decisions,

or alleged medical malpractice, cannot form the basis of a claim

under the ADA. See Baldridge-El v. Gundy, No. 99-2387, 2000 WL

1721014, at *2 (6th Cir. Nov. 8, 2000)(stating that the

plaintiff’s ADA claim fails because the ADA does not “provide a

cause of action for medical malpractice”); see also Burger v.

Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (“A lawsuit under

[the ADA] cannot be based on medical treatment decisions”);

Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)(recognizing

that “the ADA does not create a remedy for medical malpractice”). 

Based on the foregoing, this Court will also recommend that

defendants’ motion be granted on this ground. 

D. Medical Malpractice and/or Negligence

Last, the Court turns to Mr. Royster’s medical malpractice

and/or negligence claim based on state law. Defendants argue,

inter alia, that the state law claims that Mr. Royster proposes

to assert are not actionable here. This Court agrees. To the

extent that Mr. Royster seeks to assert state law claims against

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defendants, under O.R.C. §9.86 no such claims may be maintained

against state officials unless and until it has been determined

that those officials acted manifestly outside the scope of their

employment. That determination cannot be made by a federal

court; rather, it is reserved for the Ohio Court of Claims under

O.R.C. §2743.02(F). See Griffin v. Kyle, No. 2:10-cv-664, 2011

WL 2885007, at *3 (S.D. Ohio July 15, 2011). As this Court

explained in Nuovo v. The Ohio State University, 726 F. Supp.2d

829, 848 (S.D. Ohio 2010)(Frost, J.),

as another judicial officer has recognized, “[t]he Sixth

Circuit has read §§9.86 and 2743.02(F) together to hold

that a state employee is immune from state law claims

until the Court of Claims has held that §9.86 immunity is

unavailable.” Prior v. Mukasey, No. 3:08CV994, 2008 WL

5076821, at *2 (N.D. Ohio Nov. 21, 2008). This means

that, “[u]ntil the Ohio Court of Claims determines that

[defendants] are not immune, there is no cause of action

cognizable under Ohio law over which the district court

can assert jurisdiction. Id. (quoting Haynes v.

Marshall, 887 F.2d 700, 705 (6th Cir. 1989)).

Accordingly, this Court will recommend that the motion for

judgment on the pleadings be granted as to Mr. Royster’s state

law claims of medical malpractice and/or negligence.

V. Conclusion

For the reasons set forth above, it is recommended that the

motion for judgment on the pleadings be granted as to defendants

Gary Mohr, Norm Robinson, and Alice Ault. However, to the extent

that defendants seek to have Dr. Williams dismissed from this

case due to Mr. Royster’s alleged failure to serve him properly,

it is recommended that Mr. Royster be granted a twenty-eight day

extension of time to effect service on Dr. Williams. 

Consequently, it is recommended that the request to dismiss Dr.

Williams be denied. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

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proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 

 /s/ Terence P. Kemp 

United States Magistrate Judge

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